Terms and Conditions
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 3 BELOW.
Last Revised: February 7, 2023
FOR RESIDENTS OUTSIDE NORTH AMERICA: If you are under the age of eighteen (18), please ask your parent or legal guardian to read and accept this Agreement on your behalf before you use or access the Websites. If you (or, if applicable, your parent or guardian) do not agree to this Agreement, then you must not use or access the Websites. You represent and warrant that you are a “natural person” who is over the age of eighteen (18) or whose parent or guardian has accepted and agreed to this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT IS A BINDING, LEGAL CONTRACT BETWEEN YOU AND COMPANY. BY REGISTERING FOR, ACCESSING, BROWSING OR USING OUR WEBSITES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS CONTAINED IN THIS AGREEMENT. BY ACCESSING, BROWSING OR OTHERWISE USING ANY PART OF OUR WEBSITES, YOU ACCEPT, WITHOUT QUALIFICATION OR LIMITATION, THIS AGREEMENT AND THE TERMS CONTAINED IN THIS AGREEMENT. IF AT ANY TIME YOU DO NOT AGREE TO THE TERMS CONTAINED IN THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE WEBSITES, AND ACCORDINGLY, MUST IMMEDIATELY TERMINATE YOUR USE OF OUR WEBSITES.
(a) We may at any time change or discontinue any aspect or feature of our Websites, including, but not limited to, content, hours of availability, and equipment needed for access or use.
2. Changed Terms: We reserve the right, at any time and at our sole discretion, to change or modify this Agreement and/or the terms and conditions applicable to your use of the Websites, or any part thereof, or to impose new terms, including, but not limited to, adding fees and charges for use. Except for Section 8 (Arbitration and Class Action Waiver) below, such changes, modifications, additions or deletions will be effective immediately upon notice thereof, which may be given by any means, including, but not limited to, posting a notice on a Website, updating the date of this Agreement above, by electronic or conventional mail, or by any other means by which you obtain notice thereof. You should periodically check this webpage for any changes to this Agreement. Any continued use or access of a Website by you after the posting of any such notice will be deemed to constitute your binding acceptance of any such changes, modifications, additions or deletions. If any modification, change, addition or deletion to these terms and conditions is not acceptable to you, your only recourse is to terminate this Agreement and refrain from using and accessing our Websites.
3. For residents in North America– BINDING ARBITRATION AND CLASS ACTION WAIVER:
READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
These BINDING ARBITRATION AND CLASS ACTION WAIVER provisions apply to you if you are domiciled in and/or use or access the Websites in the United States. These provisions may also apply to you if you are domiciled in and/or use or access the Websites from outside the United States. See JURISDICTION AND APPLICABLE LAW below for details.
Initial Dispute Resolution: Our Customer Support department is available to address any concerns you may have regarding our Websites. Most concerns are quickly resolved in this manner to our customers’ satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Binding Arbitration: If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued pursuant to the paragraph above, then either party may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its interpretation, formation, performance and breach), the parties’ relationship with each other and/or your use or access of the Websites shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Comprehensive Arbitration Rules or Streamlined Arbitrations Rules, as appropriate, excluding any rules or procedures governing or permitting class actions. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the “FAA”) shall apply to the interpretation, applicability, enforceability and formation of this Agreement notwithstanding any other choice of law provision contained in this Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The JAMS Rules governing the arbitration may be accessed at http://www.jamsadr.com/ or by calling JAMS at (800) 352-5267. Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS Comprehensive Arbitration Rules and, to the extent applicable, the Consumer Minimum Standards, including the then-current limit on arbitration filing fees. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Location: If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in New York County, New York, and you and Company agree to submit to the personal jurisdiction of any federal or state court in New York County, New York, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception – Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Websites under this Agreement. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30 Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the “Binding Arbitration,” “Location,” and “Class Action Waiver” paragraphs above by sending written notice of your decision to opt-out to the following address: ESXL LLC., Attention: Legal, 4 World Trade Center, Floor 49, New York, New York 10007. The notice must be sent within 30 days of the date on which you first access or use a Website and agree to these terms); otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Company also will not be bound by them.
Changes to this Section: Wewill provide 60-days’ notice of any changes to this Section. Changes will become effective on the 60th day and will apply prospectively only to any claims arising after the 60th day.
4. Jurisdiction and Applicable Law:
The Websites are made available subject to the terms of this Agreement. If you use or access our Websites from:
A. For residents in the United States, Mexico, or Canada, then any claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) will be subject to the laws of the State of New York, without reference to conflict of laws principles. If any court or arbitrator determines that the “Class Action Waiver” paragraph set forth above is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then any and all claims arising out of this Agreement (including interpretation, claims for breach, and all other claims (including consumer protection, unfair competition, and tort claims)) shall be decided under the laws of the state where you were a citizen at the time you used or accessed a Website that was subject to this Agreement. In addition, you and we irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in New York County, New York to resolve any claims that are subject to exceptions to the arbitration agreement described in BINDING ARBITRATION AND CLASS ACTION WAIVER above, or otherwise determined not to be arbitrable.
B. For residents in Europe and the European Union, then the laws of England and Wales govern the interpretation of this Agreement and apply to claims for breach of it, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, data protection and privacy laws and regulations, and in tort, will be subject to the laws of the European Union country (e.g., the United Kingdom, the French Republic, or the Federal Republic of Germany) in which you use or access the Websites. In addition, with respect to jurisdiction, you may choose either the courts of the country (e.g., the United Kingdom, the French Republic, or the Federal Republic of Germany) in which you use or access the Websites, or in the alternative the courts of England and Wales or other court as applicable under the Brussels Regulation EC 44/2001.
C. For residents in Australia or Japan, then the laws of Australia govern the interpretation of this Agreement and apply to claims for breach of it, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, data protection and privacy laws and regulations, and in tort, will be subject to the laws of the country in which you use or access the Websites (being either Australia or Japan). To the extent permitted by applicable law, you agree to the jurisdiction of the courts of New South Wales, Australia.
D. For residents in the Rest of the World, if you use or access the Websites from countries other than those listed in sections A, B and C above, then you do so on your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable, and you expressly indemnify and hold harmless Company from any and all claims, loss, injury, damage, or costs arising from your use or access the Websites to the extent permitted by applicable law. No warranty or representation is made by Company that the Websites or any use or access the Websites outside of the countries listed in sections A, B and C above complies with any applicable local law. Further your use or access the Websites and all claims arising out of or related to the Websites or this Agreement will, to the extent permitted under applicable law, be subject to the laws of England and Wales, without reference to conflict of laws principles and you consent to the jurisdiction of the courts of England and Wales.
To the fullest extent permitted by applicable law, if any user outside of the United States is entitled to commence and/or participate in legal proceedings within the United States, then that user agrees to be bound by the BINDING ARBITRATION AND CLASS ACTION WAIVER provisions above.
5. Equipment: You are responsible for obtaining and maintaining all telephone, computer hardware, software and other equipment needed for access to and use of the Websites and all charges related thereto.
(a) As a commitment to our users, we currently provide you with access to a rich collection of online resources, including various communication and social networking tools, online forums, news, reviews, personalized content and programming which may include branded programming. Certain services are presently provided free of charge, but it is possible that Company may charge for certain services in the future, subject to applicable laws.
(b) We cannot always foresee or anticipate technical or other difficulties with our Websites. These difficulties may result in loss of data, personalization settings or other service interruptions. Therefore, you agree that our Websites are provided on an “AS IS” and “AS AVAILABLE” basis. We do not assume responsibility for the timeliness, deletion, non-delivery or failure to store any user data, communications or personalization settings.
(c) We reserve the right to change or discontinue, temporarily or permanently, our Websites at any time. You agree that we will not be liable to you or any third party for any modification or discontinuance of any of our Websites.
(d) Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, or any user of our Websites are those of the respective author(s) or distributor(s) and not of Company and Company neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on our Websites Service and expressly disclaims any and all liability in connection therewith.
(e) Your use or access of our Websites is at your own risk.
(f) Our Websites may include hyperlinks to other websites or services solely as a convenience to you (“Third Party Sites”). We have no control over, do not endorse and are not responsible for any such Third Party Sites or the information, advertising, products, services or materials contained on or accessible through any such Third Party Sites. You agree that we are not liable for any loss or damage which may be incurred by you as a result of the availability of any Third Party Sites or as a result of any reliance placed by you on the completeness, accuracy or existence of any the information, advertising, products, services or materials contained on or accessible through any such Third Party Sites and your use of any such Third Party Sites or the services provided by them shall be governed by such terms between you and such Third Party sites.
7. Your Use of the Websites:
(a) To the extent we ask you to register on a Website, you agree that you shall provide true, accurate, current and complete information about yourself as requested in the Website’s registration forms. Accurate records help us create better websites and provide us with opportunities to identify new services or products that may interest you. You agree to update your registration data to keep it current and accurate within a reasonable time after any change to that data.
(b) You shall use the Websites for lawful purposes in compliance with this Agreement only. The Websites may include interactive areas or services, such as chat boxes or web forums, in which you or other users may create, post or store content, messages, materials, data, information, text, music, sound, photos, video, graphics, applications, code or other items or materials on the Websites. You are solely responsible for your use of such interactive services and shall use them at your own risk. You warrant, represent, acknowledge, agree and certify that, with respect to your use of any Website or receipt of any prize in connection with a contest administered or hosted by us, you are not a sanctioned individual/entity included on the US Department of Treasury’s OFAC Sanctions SDN List.
(c) You shall not (hereinafter, collectively “Rules of Conduct”):
(i) Post, upload, distribute, publish or otherwise transmit through the Websites any content or other items that:
(A) may be unlawful, libelous, abusive, defamatory, obscene, profane, offensive, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, inflammatory, fraudulent or otherwise objectionable in any way or that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
(B) may constitute, encourage or provide instructions for a criminal offense, violate the rights of any party;
(C) may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party (such as music, videos, photos or other materials for which you do not have written authority from the owner of such materials to post on the Websites). By posting any such content, you hereby represent and warrant that you have all necessary rights to distribute and reproduce any such content;
(D) may violate any party’s right of publicity or right of privacy;
(E) contain personal information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
(F) may be considered threatening, harassing or promoting racism, bigotry, hatred or physical harm of any kind against any group or individual;
(G) contain software viruses, corrupted data or other harmful, disruptive or destructive files or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(H) contain or is an unsolicited offer, advertisement, proposal, promotional material, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, including, without limitation, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, petitions for signatures, or any of the preceding things related to promotional giveaways (such as raffles and contests), and other similar activities; or
(I) in the judgment of Company may be objectionable or which restricts or inhibits any other person from using or enjoying the Websites or which may expose Company or our users to any harm or liability;
(ii) Rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted in this Agreement;
(iii) Impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the accounts of others without permission, forge another persons’ digital signature, misrepresent the source, identity, or content of information transmitted via the Websites, or perform any other similar fraudulent activity;
(iv) Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Websites, features that prevent or restrict use or copying of any content accessible through the Websites, or features that enforce limitations on the use of the Websites;
(v) Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Websites or any part thereof;
(vi) Modify, adapt, translate or create derivative works based upon the Websites or any part thereof;
(vii) Use any robot, spider, scraper, crawler or other automated means to access the Websites for any purpose or bypass any measures Company may use to prevent or restrict access to the Websites; or
(viii) Attempt to indicate in any manner that you have a relationship with Company that does not actually exist or that Company has endorsed you or any products or services for any purpose.
The above are examples of prohibited conduct and is not intended to be exhaustive. Any conduct by you that, in Company’s sole discretion, restricts or inhibits any other user from using or enjoying the Websites will not be permitted. Company shall have the right, but not the obligation, to monitor the content of the Websites, including profiles and forums, to determine compliance with this Agreement and any Policies and other operating rules established by Company and to satisfy any law, regulation or authorized government request. Company will make the sole determination as to what content is acceptable in its sole discretion. Company may include, edit or remove any content at any time without notice, in its sole discretion. Without limiting any other rights or remedies of Company, any violation of the foregoing shall violate this Agreement and may result in, among other things, removal of the prohibited communications and/or suspension or termination of your rights to use and access the Websites.
(d) You understand that, when using the Websites, you will be exposed to content from a variety of sources, and that Company is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such content. You further understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable. If you do so object, you should not use the Websites. Company does not pre-screen or endorse any third-party content and is not responsible or liable under any circumstances for such content.
(f) The Websites may include means by which you and other users may share user generated content (“UGC”). To the fullest extent permitted by applicable law, by submitting any UGC you automatically grant (or represent and warrant that the owner of such rights has expressly granted) Company a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, sub-license, create derivative works from and distribute such UGC or incorporate such UGC content into any form, medium, or technology now known or later developed throughout the universe, and agree that Company shall be entitled to unrestricted use of the UGC for any purpose whatsoever, commercial or otherwise, without compensation (but subject to applicable laws), notice or attribution. You waive and agree not to assert against Company or any of its partners, affiliates, subsidiaries or licensees, any moral or similar rights you may have in any of your UGC. To the extent the Websites permits other users to access and use your UGC, you also grant such users the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your UGC on or through the Websites without further notice, attribution or compensation to you. You may only upload your own UGC to the Websites and not upload anyone else’s UGC. Company reserves the right (but has no obligation) to remove, block, edit, move, or disable UGC for any reason in Company’s sole discretion. Users of the Websites create, upload, download and use UGC at their own risk. If you upload or make available to other users your UGC via the Websites, we do not control, monitor, endorse or own your UGC, and you are commissioning us to host and make available such UGC subject to the above license. Complaints about the content of any UGC must be sent to ESXL LLC, 4 World Trade Center, Floor 49, New York, New York 10007 with a copy to [email protected] and must contain details of the specific UGC giving rise to the complaint.
8. Intellectual Property:
(a) Each Website is owned and operated by Company. All content, trademarks and other proprietary materials and/or information on the Websites, including, without limitation, Company’s logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, photos, video, graphics, music, information, data, sound files, other files and the selection and arrangement thereof and all other materials (collectively, the “Materials”) are protected by copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws (including in your country of residence). Company (or its subsidiaries or affiliated companies and/or third-party licensors) own all rights, title and interest, including, without limitation, all copyrights, in and to any and all Materials contained on the Websites under copyright laws and Company owns all rights, title and interest, including, without limitation, all copyrights, in and to any and all Materials contained on the Websites as a collective work under copyright laws. Company owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. All Materials contained in the Websites are the proprietary property of Company or its subsidiaries or affiliated companies and/or third-party licensors.
(b) Company and the Company logos and trademarks (collectively, the “Company Marks”) are the exclusive property of Company and are protected by trade dress and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws (including in your country of residence). Company hereby expressly reserves all rights, including, without limitation, all trademark rights, in and to the Company Marks. All other trademarks appearing on the Websites are the property of Company, affiliates of Company, or their respective owners. Unless you have agreed otherwise in writing with Company, you agree that nothing in this Agreement gives you a right to use any of the Company Marks or any of Company’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
(c) Unless otherwise expressly stated in writing by Company, you are granted a limited, non-exclusive, terminable, non-sublicensable license (i.e. a personal and limited right) to access and use the Websites for your own personal use only, provided that, you acknowledge and agree that you do not acquire any ownership rights in or to the Websites and/or the Materials by accessing or otherwise using the Websites. This license is subject to this Agreement and does not include any right to do any of the following: (a) any resale or commercial use of the Websites or the Materials; (b) the distribution, public performance or public display of any Materials; (c) modifying, publishing, transmitting, participating in the transfer or sale of, creating or otherwise making any derivative uses of the Websites or the Materials, or any portion of them, or in any way exploiting any of the Materials, in whole or in part; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (except page caching) of any portion of the Websites, the Materials or any information contained in them, except as expressly permitted on the Websites; or (f) any use of the Websites or the Materials except for their intended purposes. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial or non-commercial exploitation of the Materials will be permitted without the express permission of Company and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. Any use of the Websites or the Materials except as specifically authorized in this Agreement, without the prior written permission of Company, is strictly prohibited and your failure to comply with them may have legal consequences which may include violating applicable laws, including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated in this Agreement, nothing in this Agreement shall be interpreted as conferring any license to intellectual property rights, whether by estoppel, implication or other legal principles. The license granted to you herein may be terminated by Company at any time, in its sole discretion. All rights not expressly granted in this Agreement are hereby expressly reserved by Company.
9. Disclaimer of Warranty; Limitation of Liability:
(A) USE OF THE WEBSITES, ANY PRODUCT AND ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN IS AT YOUR SOLE RISK. NEITHER COMPANY, COMPANY’S AFFILIATED COMPANIES, COMPANY’S NON-AFFILIATED PARTNERS, NOR ANY OF THEIR RESPECTIVE PARENT COMPANIES, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS, SPONSORS OR LICENSORS (COLLECTIVELY THE “COMPANY PARTIES”) WARRANT THAT THE WEBSITES, ANY PRODUCT OR ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITES, ANY PRODUCT OR INFORMATION, CONTENT OR MATERIALS CONTAINED, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED OR PURCHASED THROUGH THE WEBSITES OR ANY PRODUCT. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED BY YOU THROUGH THE WEBSITES OR ANY PRODUCT IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR POTENTIAL DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE ACQUISITION OF ANY SUCH MATERIAL.
(B) COMPANY DOES NOT GUARANTEE THAT ANY PARTICULAR WEBSITE, ANY PRODUCT AND ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN WILL BE AVAILABLE AT ALL TIMES OR AT ANY GIVEN TIME OR THAT COMPANY WILL CONTINUE TO OFFER THE SAME FOR ANY PARTICULAR LENGTH OF TIME. COMPANY MAKES NO WARRANTY OR REPRESENTATION REGARDING THE AVAIILABILITY OF ONLINE PRODUCT FEATURES AND RESERVES THE RIGHT TO MODIFY OR DISCONTINUE ONLINE PRODUCT FEATURES IN ITS DISCRETION WITHOUT NOTICE.
(C) FOR RESIDENTS IN NORTH AMERICA: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITES, ANY PRODUCT AND ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. THE COMPANY PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE WEBSITES, ANY PRODUCT OR ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE WEBSITES, ANY PRODUCT OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE OR ANY PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 7, THE TERM “COMPANY” INCLUDES THE “COMPANY PARTIES.”
FOR RESIDENTS OUTSIDE NORTH AMERICA: SUBJECT TO THE NEXT SENTENCE, COMPANY DOES NOT GUARANTEE THAT ANY WEBSITE WILL BE AVAILABLE OR ERROR-FREE AT ALL TIMES OR AT ANY GIVEN TIME. COMPANY WARRANTS THAT THE WEBSITES WILL BE PROVIDED WITH REASONABLE CARE AND SKILL. COMPANY MAY CHANGE AND UPDATE WEBSITES’ WITHOUT NOTICE TO YOU (PROVIDED ALWAYS THAT ANY SUCH CHANGES DO NOT RESULT IN MATERIAL DEGRADATION IN THE FUNCTIONALITY OF THE WEBSITES WHICH HAS BEEN PAID-FOR WITH REAL MONEY). COMPANY MAKES NO WARRANTY OR REPRESENTATION REGARDING THE AVAILABILITY OF WEBSITES WHICH ARE FREE (I.E., NOT PAID-FOR WITH REAL MONEY) AND RESERVES THE RIGHT TO MODIFY OR DISCONTINUE THEM IN ITS SOLE DISCRETION WITHOUT NOTICE TO YOU, INCLUDING FOR EXAMPLE, FOR ECONOMIC REASONS DUE TO A LIMITED NUMBER OF USERS CONTINUING TO MAKE USE OF THEM OVER TIME. COMPANY IS NOT LIABLE OR RESPONSIBLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ANY OF IT OBLIGATIONS THAT IS CAUSED BY EVENTS OUTSIDE ITS REASONABLE CONTROL. IF SUCH CIRCUMSTANCES RESULT IN MATERIAL DEGRATION IN THE FUNCTIONALITY OF ANY WEBSITES THEN YOUR OBLIGATION TO MAKE ANY PAYMENT TO DOWNLOAD, USE OR ACCESS WILL BE SUSPENDED FOR THE DURATION OF SUCH PERIOD. COMPANY IS ENTITLED TO MODIFY OR DISCONTINUE ANY WEBSITES WHICH IS PAID-FOR WITH REAL MONEY IN ITS SOLE DISCRETION UPON REASONABLE NOTICE TO YOU. THE WARRANTY FOR SUCH WEBSITE IS PROVIDED IN ACCORDANCE WITH YOUR STATUTORY RIGHTS AS A CONSUMER WHICH WILL ALWAYS PREVAIL.
(D) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY, THE COMPANY PARTIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE WEBSITES, ANY PRODUCT OR ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT [INCLUDING BUT NOT LIMITED TO NEGLIGENCE] OR OTHERWISE), ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE WEBSITES OR ANY PRODUCT OR ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN.
(E) IN NO EVENT SHALL ANY AGGREGATE, TOTAL LIABILITY OF THE COMPANY PARTIES TO YOU FOR ALL DAMAGES, INJURY, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE WEBSITES OR ANY PRODUCT EXCEED AN AMOUNT EQUAL TO THE GREATER OF: (I) THE AMOUNT, IF ANY, PAID BY YOU IN CONNECTION WITH YOUR USE OF THE WEBSITES AND/OR ANY PRODUCT AND RETAINED BY COMPANY DURING THE TWELVE (12) MONTHS IMMEDIATIATELY PRECEDING THE DATE OF THE CLAIM; OR (II) ONE HUNDRED DOLLARS ($100).
(F) FOR RESIDENTS OUTSIDE NORTH AMERICA: SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITY OR WARRANTIES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, COMPANY’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE COMPANY’S LIABILITY TO YOU:
- FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE;
- FOR FRAUDULENT MISREPRESENTATION; OR
- FOR ANY OTHER LIABILITY THAT MAY NOT, UNDER THE LAWS OF THE JURISDICTION WHERE YOU RESIDE, BE LIMITED OR EXCLUDED.
10. Notices: Company may provide you with notice by any means, including without limitation via email, postings on the Websites and Websites or changes to this Agreement. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using the Websites. All notices to Company shall be in writing and shall be sent to ESXL LLC., Attention: Legal, 4 World Trade Center, Floor 49, New York, New York 10007and shall be effective on actual receipt by Company.
11. Indemnification: You agree to defend, indemnify and hold harmless Company and the Company Parties and their respective suppliers, licensors and partners from and against any and all claims, losses, damages, liabilities and expenses, including legal fees and expenses, resulting from or arising out of: (a) any violation of this Agreement; (b) any negligent or wrongful conduct; (c) your use, misuse and/or access of the Websites; (d) a violation by you of any applicable law; (e) any content you post, store or otherwise transmit in or through the Websites; and/or (f) your violation of the rights of any third party, or any breach of the representations, warranties, and covenants made by you herein. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate with Company’s defense of these claims, at your sole cost and expense.
12. Termination: Company reserves the right, without limitation, without notice if you are a resident of North America and with reasonable notice elsewhere, and in our sole discretion, terminate or suspend your access to all or part of the Website and to block or prevent your future access to and use of the Websites, for any reason, including, without limitation, if you are in violation of any provision of the Agreement (or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Agreement), Company is required by applicable law, or Company is no longer providing the Websites to users in the country in which you are a resident or from which you use the Websites. The foregoing includes Company having the ability to terminate or to suspend your access to any purchased products or services. Your only remedy with respect to any dissatisfaction with (a) the Websites, (b) any term of this Agreement, (c) any policy or practice of Company in operating the Websites, or (d) any content or information transmitted through the Websites, is to discontinue the use of the Websites. The introductory paragraphs and Sections 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18 of this Agreement will survive termination of this Agreement.
13. Expectation of Privacy: Communications made using the Websites should not be considered private. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any UGC or communications, including without limitation chat text or voice communications. Because voice chat and other communications may be viewed and/or heard by other users, users should avoid revealing any personally identifiable information.
14. DRM: If you access content protected with Digital Rights Management (DRM), the software may automatically request media usage rights from a rights server online and download and install DRM updates so that you can view the content.
15. Force Majeure: Company shall not be liable for any delay or failure to perform resulting from causes outside Company’s reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Company’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
16. Risk of Loss: You bear all risk of loss for accessing or completing the download of any Websites and for any loss of any Websites that you have accessed or downloaded, including any loss due to a file corruption or device crash. Any Website may be available for limited periods of time, and/or subject to other access restrictions (including for example, possession of other specific Websites(s) for access or use). Websites’ may become unavailable due to potential content provider licensing restrictions or other reasons; Company will not be liable to you if any Websites is or becomes unavailable for download or access, for any reason, to the fullest extent permitted by applicable law.
18. For residents in North America– DMCA Notice:
Company respects the intellectual property rights of others and expects its players and the users of its services to do the same. If you believe that any content appearing in the Websites has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below.
Please be aware that to be effective, your copyright infringement notification must comply with the Digital Millennium Copyright Act (“DMCA”). You are encouraged to review 17 U.S.C. §512(c)(3) of the DMCA or consult with an attorney prior to sending a notice hereunder.
To file a copyright infringement notice, you will need to send a written communication that includes the following to the address listed below:
A. Your name, address, telephone number, and email address;
B. A description of the copyrighted work that you claim has been infringed;
C. The exact URL or a description of where the alleged infringing material is located;
D. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
E. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
F. A statement by you, under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
4 World Trade Center, Floor 49
New York, New York 10007
Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material.
Questions: Should you have any questions regarding this Agreement you may contact us through the Website or e-mail [email protected]
The following Section supersedes and replaces the corresponding Section above for residents in Germany:
2. Changed Terms: From time to time, Company may need to amend this Agreement, for example to reflect or include new products or services, to enhance security for users or because of changes in the law. If Company makes such a change to this Agreement we will inform you of the particular changes in advance via e-mail no later than thirty (30) calendar days before such changes come into force and you shall be deemed to have accepted these changes (i) unless you have notified us of your objection to such changes within thirty (30) calendar days from the moment of receipt the e-mail notification from us, or (ii) if you use the Websites after the changes have entered into force. In the e-mail notification, we will inform you of your right to object, of the applicable notice period and the legal consequences of a failure to object.
The latest version of this Agreement will always be available on our website, so we recommend that you check for updates to this Agreement each time you use the Websites’. Changes to the Agreement shall not affect your accrued rights, shall not substantially disrupt the contractual balance between you and us under this Agreement and shall not have retroactive effect.